Reply Affirmation 5
Claimant originally filed a claim on September 4, 1998, seeking damages for
alleged inadequate medical treatment received while he was an inmate at Auburn
Correctional Facility. At the time, claimant was proceeding pro se, and
a trial was ultimately commenced before my esteemed and learned colleague, Hon.
Donald J. Corbett, Jr., on June 13, 2001. A mistrial was declared on that day,
and Judge Corbett recommended that claimant seek immediate legal representation.
Claimant then retained counsel who brought an application seeking leave to
amend the original claim, as well as seeking leave to serve and file a late
claim alleging a new cause of action based upon negligence.
The application was granted by this Court and claimant was directed to serve
and file an amended claim, including the new cause of action seeking damages for
negligence, within 45 days from the filing date of said decision and order. In
the order, claimant was expressly directed to serve the amended claim upon the
Attorney General "either personally or by certified mail, return receipt
requested". The decision and order was filed on December 24, 2001.
Accordingly, service and filing of the amended claim had to be accomplished by
February 7, 2002, the 45th day from the filing date of the decision and order.
The amended claim was filed with the Clerk of the Court of Claims on February
6, 2002, within the required 45 day period.
As set forth in defendant's moving papers (see Items 1,2), the amended claim
was received by the Attorney General on February 7, 2002, via Federal Express
service. Defendant claims that the claim should be dismissed because the
amended claim was not timely or properly served.
Defendant contends that since the amended claim was received on the 45th day
following the filing of the Court's decision and order, defendant did not
receive the amended claim "within" 45 days as required by said decision and
order. However, the "number of days specified as a period from a certain day
within which or after or before which an act is authorized or required to
be done means such number of calendar days exclusive of the calendar day from
which the reckoning is made." (General Construction Law, § 20, emphasis
added). Clearly, therefore, the amended claim was timely served upon the
Attorney General, and defendant's contention that it was not timely served is
However, the amended claim was served upon the defendant by means of Federal
Express service, while the decision and order of this Court required such
service to be made "either personally or by certified mail, return receipt
requested". Defendant contends that since service was not properly made,
jurisdiction was not obtained over the defendant on the amended claim, and it
should be dismissed.
Claimant contends that since the Court of Claims Act, as well as the Uniform
Rules for the Court of Claims, are both silent as to the proper procedure for
the service of an amended claim, CPLR § 2103 governs such service (see,
Uniform Rules for the Court of Claims, § 206.1[c]). Since jurisdiction had
been acquired against the State through the proper and timely service of the
original claim, claimant contends that the service of the amended claim made by
Federal Express was proper, since such service is authorized by CPLR §
If this Court's order had been silent as to the method of service to be
utilized for service of the amended claim, the Court would agree with claimant
that service could be made by any manner authorized by CPLR § 2103.
However, the prior decision and order of this Court expressly directed that
service of the amended claim be made "either personally or by certified mail,
return receipt requested". Claimant's failure to comply with the specific terms
of the order raises the question, as contended by the State, as to whether
jurisdiction against the State has been acquired over the new cause of action
asserted in the amended claim.
In its consideration of this issue, the Court takes note that my colleague,
Judge Corbett, had granted claimant the opportunity to obtain counsel in order
to assure that his legal interests would be fully protected. The Court also
notes that following claimant's retention of counsel, this Court had found
sufficient merit in claimant's late claim application to permit him to assert a
new cause of action sounding in negligence. It would therefore defeat the whole
purpose of that prior late claim application were this Court to now deny
claimant an opportunity to present and prove his amended claim.
Furthermore, even if this Court dismissed the amended claim for improper
service, since jurisdiction has already been established against the State in
the original claim, the defendant would still remain obligated to defend such
Accordingly, even though the Court is dismayed that claimant, through his
attorneys, did not fully comply with its prior order, by their failure to
properly serve defendant as expressly set forth in said order, it does not
believe that claimant should be unduly punished by the actions of his counsel.
Therefore, in order to insure complete justice to the claimant, and since no
substantial rights of the defendant will be compromised, the Court hereby
expands the time for the technical compliance with its prior order permitting
the service and filing of an amended claim.
It is therefore
ORDERED, that Motion No. M-64882 is hereby DENIED; and it is further
ORDERED, that Cross-Motion No. CM-65025 is hereby GRANTED, to the extent
provided herein; and it is further
ORDERED, that claimant is hereby directed to serve his amended claim upon the
Attorney General, by a method of service as expressly required in the prior
decision and order of this Court dated December 10, 2001, and filed on
December 24, 2001, within 30 days from the filing date of this decision and
order. The Clerk is directed to serve the order herein upon the parties.